Monday, November 8, 2010

Those that represent lawyers and law students in Florida have been seeing it for a while - The Florida Supreme Court has changed, significantly. But it wasn't until a couple weeks ago, when the Court rejected the recommendation of a judge that Hank Adorno be reprimanded for what another appellate judge called a "scheme to defraud," that the rest of the legal community woke up.

The Court has become ultra conservative, and lawyers have been told that "misconduct will not be tolerated." I don't know that misconduct was ever "tolerated." Misconduct has always been dealt with by the filing of a complaint, review by the Bar, possible review by a grievance committee of lawyers and non-lawyers, then proceeding with the filing of a complaint (or not), and review by a judge. This judicial review allows for the presentation of evidence, or acceptance or rejection of an agreement between the Bar and the lawyer. In all cases where a complaint is filed, the Florida Supreme Court has the final say.

The rejection by the Court of consent judgments between the Bar and lawyers, or the recommendation of judges, is nothing new. It's just becoming more of the norm. It's now the "shot heard around the world" as the Court rejected the recommended reprimand of a BigLaw partner, and is now considering a 3-year suspension or disbarment.

That the Court is getting tougher on lawyers is not the point of this post. The goings on in the Bar are what's of interest to me.

We self-regulate in Florida. All discipline is handled by the Bar, which spends about half their budget - 10 million dollars - handling complaints. In recent years there has been a threat to end self-regulation, to send discipline to the Department of Business and Professional Regulation. The Bar shudders, lawyers shudder, lawyers who practice in this area are shuddering less. We see the threats working - causing the Bar to cower to the legislature in a cry of "look, we're tough on them!" The end result is that the Bar is not seeking discipline based on what it thinks is appropriate, but on what it believes the Court wants. This isn't self-regulation, this is cow-towing.

The question I get is "should we recommend discipline we know the Court won't accept?"

Yes, you should. You, Florida Bar, should recommend what you deem appropriate, and let the Court ask for an explanation. The lesson of the Adorno case is that when lawyers are accused of rule violations, the Bar will now appeal recommendations of judges in order to preserve self-regulation, not because they disagree with the discipline.

Underlying all of this is the public. The Bar is not here as a "lawyers union." The Bar exists to discipline, administer CLE, and as one of Florida's newest consumer protection agencies. The public hates lawyers, the Bar has stopped promoting lawyers, and is now in the business of letting the public know that they are there for you. Evidence? More and more inane, non-sensical client rants containing no rule violations are being sent to lawyers for a response. The reason? To let the public know that the Bar is "on it."

And the law students? Recently the Florida Board of Bar Examiners met with law school deans, prosecutors and public defenders. (In Florida, a law student needs to pass the character & fitness investigation to intern as a prosecutor or PD - a stupid rule). The Board, setting more and more students for hearings for things they were "dropped off at home by the cops" for when they went to law school, expressed concern about "what kind" of law students the schools were admitting.

Truth be told, and I've said it many times here - more and more law students have no concept of becoming lawyers, and never should have gone to law school in the first place. But there has never been a study, nor any statistics presented that prove a correlation between a law student with "issues" pertaining to character & fitness, and their career as a lawyer. I wonder how many law students who have passed character & fitness free and clear, have gone on to have ethical issues as a lawyer.

The Board though, is making law students go through more and more hoops for things in their past. Law students who are lucky enough to have a job can kiss those jobs goodbye when the Board rules they need to sit out 6 months to think about what they did 8 years ago.

It's getting harder to get in to the Bar, and stay in the Bar. In concept, this doesn't sound too bad. We don't need anymore unethical lawyers. We do though, need to make sure decisions are appropriate, and not just crowd pleasing.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.